A&M Records, Inc. v. Napster, Inc., Napster was created as a mechanism for peer-to-peer file
sharing of music and other audio files on the Internet. 113 Ultimately, the court found that Napster
had the right to “supervise its users' conduct” but failed to police its system to prevent the misuse
of copyrighted material. Further, the court found Napster had knowledge of this illegal activity:
“if a computer system operator learns of specific infringing material available on his system and
fails to purge such material from the system, the operator knows of and contributes to direct
Conversely, under the CDA, even when ISPs such as Backpage have knowledge of
illegal activity taking place on their websites, no statutory or common law authority requires them
to remove the offending material, or to prevent it from being posted in the first place. Therefore,
although Backpage admits to contacting NCMEC if it finds suspect material, it is not required to
remove the ad even if informed by law enforcement that the ad involves a trafficked victim. 115
Alternatively, the DCMA requires ISPs to remove offending copyrighted information from their
site upon receipt of knowledge of its illegality, but thus far Congress has not seen it fit to require
the same of ISPs with regard to ads trafficking minors and adults. Under current law, ISPs are
not permitted to profit from copyright infringement occurring on their servers, but are permitted
to profit from ads that traffic and exploit individuals, even if they know about, tolerate, and
facilitate the illegal activity being promoted.
B. CDA Immunity Under Criminal Law
The CDA also contains a provision, § 230 (e)( 1), entitled “No effect on criminal law,”
stating that “[n]othing in this section shall be construed to impair the enforcement of section 223
or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of
children) of Title 18, or any other Federal criminal statute.” 116 Nonetheless, the court in Dart v.
Craigslist, Inc. found Craigslist immune from liability with respect to postings under the CDA. 117
The Sheriff of Cook County, Illinois, Tom Dart, alleged that the “erotic” (later “adult”) section of
Craigslist Internet classifieds, “facilitates prostitution and constitutes a public nuisance” and also
“makes it easier for prostitutes, pimps, and patrons to conduct business.” 118 Dart acknowledged
the “warning & disclaimer” of the listing encouraging users to flag prohibited content, 119
does not remove infringing materials upon receipt of such knowledge; 2) the ISP does not profit from infringement where it has the
power to control the infringement; and 3) upon receiving notice (in the statutorily-prescribed manner) from the copyright holder, the
ISP removes the infringing material. Id. § 512(d).
113 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1011 (9th Cir. 2001); see also, Napster, WIKIPEDIA,
http://en.wikipedia.org/wiki/Napster (last visited Sept. 17, 2013) (explaining that Napster was originally founded as a “peer-to-peer
file sharing Internet service that emphasized sharing audio files, typically music, encoded in MP3 format”). Plaintiff, a recording
company, alleged that Napster was a “contributory and vicarious copyright infringer” by “facilitate[ing] the transmission of MP3 files
between and among its users,” which allowed Napster to search, store, and transfer exact copies of other users’ MP3 files, including
copyrighted material. Napster, 239 F.3d at 1011. The court noted that Napster had the right to “supervise its users’ conduct,” yet it
failed to police its system to prevent the exchange of copyrighted material and it financially benefitted from the illegal copyright
infringing activity because “the availability of infringing material ‘acts as a ‘draw’ for customers.’” Id. at 1023.
114 Napster, 239 F.3d at 1021.
115 See Ruvolo, supra note 75; Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1267 (W.D. Wash. 2012) (granting Plaintiffs’
Motions for Preliminary Injunction).
116 47 U.S.C.A. § 230(e)( 1) (West 2013) (emphasis added). It should be noted that despite this exception to the CDA, criminal
immunity has been challenged under the CDA in several instances, albeit unsuccessfully. See, e.g., Doe v. Bates, 5:05-CV-91-DF-
CMC, 2006 WL 3813758, at 3, 5-6 (E.D. Tex. Dec. 27, 2006) (finding immunity for Yahoo! despite the arguments made (and
evidence presented) by Plaintiff that a violation of federal child pornography laws was present).
117 Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 962 (N.D. Ill. 2009).
118 Id. at 961, 963.
119 Id. at 962. The “warning & disclaimer” stated that “users entering that [erotic/adult] section agree to ‘flag prohibited’[sic] content